2010 (September Term)
United
States v. Girouard, 70 M.J. 5 (premeditated
murder under Article 118, UCMJ,
requires: (1) a death; (2) that the accused caused the death by an act
or
omission; (3) the killing was unlawful; and (4) at the time of the
killing, the
accused had a premeditated design to kill).
(assuming without deciding
that simple
negligence is subsumed within premeditation, it is nonetheless apparent
that
negligent homicide contains additional elements that are not elements
of
premeditated murder: the terminal elements of Article 134, UCMJ,
prejudice to
good order or service discredit; therefore, negligent homicide is not
an LIO of
premeditated murder).
2008
(Transition)
United
States v. Miergrimado, 66 M.J. 34 (to sustain a
conviction for
attempted premeditated murder, the government must prove that at the
time of
the killing, the accused had a premeditated design to kill;
premeditated murder
is murder committed after the formation of a specific intent to kill
someone
and consideration of the act intended; the offense of voluntary
manslaughter,
on the other hand, requires the intent to kill or inflict great bodily
harm,
and does not require premeditation; thus, premeditation is a
distinguishing
factual element).
2001
United
States v. Szentmiklosi, 55 MJ 487 (if during the
course of
a robbery, a killing results, the robbery and the resulting homicide
are
separately chargeable).
2000
United
States v. Nelson, 53 MJ 319 (because
homicide
offenses under the UCMJ are derived from the common law, it is
appropriate to
construe Articles 118 and 119 – including the phrase “human being” – in
the
context of the common law; other important public policy concerns
surrounding
homicide of a child should be resolved in a legislative rather than a
judicial
forum).
(under the UCMJ, for homicide offenses involving a child, the modern
common
law view defines “human being” as a child that was “born alive,” and
that “born
alive” means that the child was wholly expelled from its mother’s body
and
possessed or was capable of an existence by means of a circulation
independent
of the mother).
1999
United
States v. Gray, 51 MJ 1 (rejecting argument that there
is no
meaningful distinction between premeditated and unpremeditated murder,
and
approving instruction that the principal difference between
premeditated murder
and unpremeditated murder is that for premeditated murder the accused
must have
had the premeditated design to kill, that is, the accused must have
considered
the act prior to the application of force and must have had the
specific intent
to kill, whereas unpremeditated murder requires the specific intent to
kill or
inflict great bodily harm without premeditation; see United
States v.
Loving, 41 MJ 213, 279-280 (1994), aff’d on other grounds,
517 U.S.
748 (1996)).
United
States v. Henderson, 52 MJ 14 (evidence, including
appellant’s
admission that he stabbed the victim numerous times and other evidence
indicating that victim was stabbed eight times including one time in
the heart
and four other times in life-threatening locations, and evidence
indicating
that appellant kicked the victim in the head as he lay wounded in his
mother’s
arms, was legally sufficient to support finding of unpremeditated
murder).
(Court of Criminal Appeals did not erroneously shift the burden by
indicating
that the prosecution had no burden to disprove heat of passion and
adequate
provocation; rather, court found, relying on its factfinding powers,
that the
provocation itself was insufficient to undermine finding of guilty of
unpremeditated murder).
United
States v. Martinez, 52 MJ 22 (the negligence necessary
for
conviction of involuntary manslaughter requires a legal duty, and
military law
recognizes a duty on the part of a parent to provide medical assistance
to his
or her child; although appellant was not the biological father of his
wife’s
child, there was ample evidence in the record to find that appellant,
under the
circumstances of this case, had a parental duty as co-head of household
to
provide medical assistance to this child).
(members could find that appellant’s reliance on a suspected child
abuser’s
assurances was an unreasonable response to his duty to provide medical
care to
this child, and thus sufficient for offense of voluntary manslaughter,
where: (1) appellant knew baby had been repeatedly bruised while
in
mother’s care; (2) appellant suspected his wife of abusing child; (3)
evidence
of recent physical battery was readily observable in appellant’s home;
and, (4)
the child’s body was severely bruised when he died, and appellant
observed
numerous bruises on the child’s body the week before the child died).
(evidence of culpable negligence, specifically the requirement for
culpable
disregard for the foreseeable consequences to others, to support a
finding of
involuntary manslaughter was legally sufficient where the evidence
showed: (1) the victim in this case would have displayed a number
of
symptoms which would not reasonably support conclusion that victim
merely
suffered from flu; (2) appellant was fully aware that victim sustained
repeated
assaults while in the mother’s care and had suggested medical
treatment; and,
(3) expert testimony indicated that most recent bruising was pronounced
in
appearance and might suggest intentional battering to even a layman).
United States v. Wells, 52 MJ 126 (testimony of appellant concerning a heated domestic dispute, the presence of the victim exacerbating this dispute, the victim’s display of a gun, appellant’s belief that a shot was fired at him as he left initially, and the presence of the victim with a gun when appellant returned, placed heat of passion and adequate provocation at issue in the case so as to require instruction on lesser-included offense of voluntary manslaughter).